. ' LrQSdr IN THE FEDERAL COURT OF AUSTRALIA ) NO. VG102 of 1985 VICTORIA DISTRICT REGISTRY ) NO. VG1023 of 1985 GENERAL DIVISION ) NO. VG104 of 1985 NO. VG105 of 19985 NO. VG106 of 1985 NO. VG107 of 1985 : NO. VG103 of 1985 a NO. VG1O9 of 1985 BETWEEN: WALTER KORCZYNSKI Prosecutor AND: WES LOFTS (AUST.) PTY. LTD. Defendant MINUTE OF ORDER JUDGE MAKING ORDER: Jenkinson J. DATE OF ORDER: 19 June, 1986 WHERE MADE: Melbourne The Court orders that upon each information the defendant be convicted and sentenced to pay a fine of $750 and that in each proceeding the defendant pay to the prosecutor his costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ne IN_THE FEDERAL COURT OF AUSTRALIA ) NO. VG102 of 1985 VICTORIA DISTRICT REGISTRY y NO. VG103 of 1985 GENERAL DIVISION ) NO. VG104 of 1985 NO. VG105 of 1985 NO. VG106 of 1985 NO. VG107 of 1985 *. NO. VG108 of 1985 NO. VG109 of 1985 BETWEEN: WALTER KORCAUYNSKI Prosecutor AND: WES LOFTS (AUST.) PTY. LTD. Defendant CORAM: Jenkinson J. PLACE: Melbourne DATE: 19 June, 1986 REASONS FOR SENTENCE Each of eight informations for contraventions of s.53(a) of the Trade Practices Act 1974 having been proved, the defendant is to be convicted and fined for each of those offences. Particulars of each contravention are disclosed in the reasons published on 31 October 1985 for the conclusions, which were then stated, that the informations had been proved. What is now stated is by way of addition to those reasons. It appeared in evidence that in April or May 1984 a senior servant or officer of the defendant company enquired by telephone cf a Commonwealth public servant what "parcentage of local content" would - justify labelling an articie of commerce "made in Australia". The public servant, who was at the time First Assistant Secretary, Department of Industry and Commerce, disclaimed knowledge of the answer to the enquiry, but indicated that he did not think the answer would be determined by the application of what he described as "hard and fast rules". No officer or servant of the defendant gave evidence as to what influence the telephone conversation had on the defendant's directors. I understood that counsel for the defendant sought to use the evidence of the approach to the public servant and of the public servant's response as indicating a desire on the part of thosa who were controlling the defendant to label the masking tape they were selling in conformity with the law andas indicating that they had received, in response to the inquiry, no warning that the labelling adopted was contrary to law. On the other hand the large volume of the defendant's trade in the masking tape suggested - and no other evidence contradicted the suggestion - that the defendant was at relevant times a company in a substantial way of business and that it could have afforded to pay for legal advice about the lawfulness of the course it was pursuing in respect of labelling masking tape. The Trade Practices Commission had published its -own opinion of the unlawfulness of conduct similar to the defendant's conduct and could have been expected to respond to enquiry on behalf of the defendant with a warning that the labelling was in its opinion unlawful. The enquiry which the defendant did make was made 3. eighteen months after header cards marked "Made in Australia" had been first ordered by the defendant for use in the packaging of masking tape. I will assume in the defendant's favour - although no evidence was adduced - that those who controlled the company did not advert to the possibility that that labelling was unlawful until April 1984. The criminal sanctions which s.79 of the Trade Practices Act 1974 prescribes are not directed only against auntentional breach of Fart V of that Act. Thoughtless disregard of a provision of that Part calls for punishment. Only a reprehensibly unreflecting mind could have decided to claim that this masking tape had been made in Australia without adverting to the possibility that such a claim might be likely to mislead prospective purchasers. Only a reprehensibly uninformed mind could have failed to recognise that a misleading claim of that kind might constitute a contravention of the Trade Practices Act. I weigh in favour of the defendant that the legal contentions advanced by counsel on behalf of the defendant in denial of the charges were arguable. It could not be said that what the defendant did was an obvious breach of the Trade Practices Act. But the strength of that consideration is not great, since the defendant was not said to have sought, or to have received, any legal advice on the matter before the offences were committed. I see no reason to distinguish between any one of the offences and any other or others. I consider the appropriate penalty in respect of each information 1s that the defendant he sentenced to pay a fine of $750. In the case of each information VI 4. there will be an order that the prosecutor's costs of proceeding be paid by the defendant. I certify that this and the 3 preceding pages are a true copy the of the Reasons for Sentence herein of the Honourable Mr. Justice JENKINSON. Dated: (9 pars 19 86 Associate